Challenge to Murphy win still alive

Court requests arguments on whether appeal is moot

Mayor Dick Murphy's resignation spurred an appeals court in Orange County to set a schedule for resolving the legal challenge to the mayor's controversial November victory, which put him in the office he is now abandoning.

In a terse order issued late Tuesday, the 4th District Court of Appeal requested legal arguments to address the issue of whether the entire appeal is moot because of the mayor's resignation.

The court also said the first briefs in the case are due by the end of May and that oral arguments could occur as early as October.

The appeal concerns two challenges to Murphy's narrow November win over write-in candidate Donna Frye. Both challenges argue that 5,551 ballots that had the councilwoman's name written in but did not have a small oval bubble next to it marked should be counted in her total.

Doing so would make Frye the winner, since she lost by just 2,801 votes. The ballots were not counted because state elections law requires that the bubble be colored in.

In February, after a three-day trial, Superior Court Judge Michael Brenner sided with Murphy, ruling that the ballots did not count, and certified the mayor as the winner.

Brenner is a judge from Orange County who heard the case after the San Diego judges were recused to avoid an appearance of bias. Murphy was a judge before being elected mayor. The appeal is being heard in Orange County for the same reason.

Fredric Woocher, the lawyer for three Frye supporters challenging Murphy's win, said the appellate court's order shows that the justices want to "touch all the bases." He added that Murphy's resignation does not make the suit or appeal moot.

He said the issue is: Who was elected to the term of office that began in December, when Murphy was sworn in?

"There was an election and Dick Murphy was declared the winner, and we said Donna Frye should be the winner," Woocher said. "If the court declares Donna Frye the winner, she is entitled to hold that seat."

San Diego lawyer Bruce Henderson, representing two other challengers, agreed with Woocher.

Bob Ottilie, the mayor's lawyer, said he will research the question raised by the justices. However, he said, even if the justices decide Murphy's resignation makes the issue moot, they could still hear the case because it involves an important legal question about a state voting law.

Henderson also indicated that he would like the appeals court to issue a decision before Murphy steps down in July. If the court were to rule that the ballots should be counted and Frye was the winner, then the expected special election to fill Murphy's vacancy would be called off, Woocher said.

The City Council is to decide next week if the mayor's seat will be filled by appointment or by setting an election. When that election would occur is not yet known.

Ottilie again called for the appeal to be dropped to clear away any confusion if a special election is called.

He said that the multiple challenges to the election – both to Frye's candidacy and how the votes were counted – have been rejected by numerous judges. The issue over the unbubbled votes have been addressed by two judges, both of whom declined to order the ballots counted.

"Any time spent worrying about this appeal is misplaced," Ottilie said. "This will only add to the confusion and uncertainty about who is mayor, and we would be better off if the folks who brought this dropped it."